This Services Agreement (“Agreement”) is a legal and binding agreement between Genriche Pty Ltd (ABN 37 136 180 366), trading as Finch (“Finch”), and Company represented by the authorised signing party.
The Effective date of this Agreement commences upon Sign Up or Request for Access (“Effective Date”). Finch and the Company agree to as follows.
This Agreement has been divided into the following sections for convenience:
- Term & Termination
- Warranties, Liability, and Indemnity
- Intellectual Property
- Contact us
1.1 Finch is to provide Data Intelligence Services (“Services”) to the Company.
1.2 The Company will provide Financial Data “(Financial Data”) to Finch in the format and for the purpose (“Permitted Purpose”).
1.3 As part of the Services, Finch will provide Data Intelligence Reports (“Finch Reports”) of the Financial Data in a format specified by the Plan.
2. Term & Termination
2.1 This Agreement shall come into effect as of the Effective Date with Services commencing on the Commencement Date (“Commencement Date”) and continuing until the end of the Initial Term (“Initial Term”).
2.2 Either party may terminate the Agreement at the end of the Initial Term or at the end of any Renewal Term by providing 90 days notice prior to the end of the relevant term.
2.3 Either party may terminate the Agreement in the event the other party is in breach of its obligations under the Agreement and such breach is not remedied within 30 days of receipt of notice of breach from the other party, or if the other party is wound up, enters into administration, liquidation or becomes insolvent (“Termination Event”).
2.4 Upon Termination of this Agreement, the Company will immediately cease use of the Services and will at Finch’s request immediately either return to Finch or destroy and certify the destruction of all information contained within the Finch Reports and that reside in the Company’s systems or otherwise in its possession, power, or control of persons who have received information from directly or indirectly from the Client. Any cached data in the Company’s mobile application that contains information from the Finch Reports will be deleted and permanently destroyed within 14 days of Termination.
2.5 All clauses which either expressly or by implication are intended to survive this Agreement after Termination will continue to apply after this Agreement ends, including but not limited to Intellectual Property Rights and Confidentiality terms.
*Fees do not apply to Test Plan & PFM Promo Plan.
3.1. The Company shall pay to Finch the Fees as described in the Schedule (“Fees”). Fees are due upon Finch’s invoice due date and all invoices will be sent to the Company’s designated representative via email. Finch reserves the right to withhold delivery of the Services until the Fees that are due on the invoice date are received. All payments to Finch shall be in Australian Dollars and made via bank transfer.
3.2 Finch may charge a late fee on any amounts not paid within thirty (30) days of an invoice due date. The late fee will be equal to one and one-half percent (1½%) per month of the outstanding amount. The Company will remain liable to Finch for any fees and expenses that Finch incurs in collecting, or attempting to collect, outstanding fees owed by Company to Finch.
3.3 Any fees payable under this agreement are exclusive of Goods and Services Tax (“GST”) and other indirect taxes, as required by law. As between Finch and Company, Company has sole responsibility for determining what, if any, taxes or fees apply to the sale of its products and services.
4. Warranties, Liability, and Indemnity
4.1 Both parties agrees, represents and warrants that:
- It will comply with all applicable laws;
- It has the right, power, and ability to enter into and perform under this Agreement; and
- The execution of this Agreement and use of the services described herein does not violate any applicable law or contract.
4.2 Both parties also agree, represents and warrants to have in place reasonable safeguards, precautions and security procedures to:
- Protect information in the Financial Data and in the Finch Reports from access or use by an unauthorised user;
- Protect Finch’s information technology systems, including implementing reasonable procedures to guard against viruses and unauthorised interception, access or use;
- Ensure that the Financial Data and the Finch Reports are maintained in an information security management system which is compliant with ISO 27001;
- Any cloud services or physical storage of the Financial Data or the Finch Reports must be hosted in Australia.
4.3 Finch represents, warrants, and covenants that the Service will perform substantially in accordance with the Agreement and during the term. Finch makes no other warranties of any kind, whether expressed, implied, statutory, or otherwise, regarding the services hereunder, and Finch specifically disclaims any implied warranties or service guarantees as to the quality, fitness for purpose, usefulness, reliability, timeliness, accuracy or profitability of any information accessed including Finch Reports and you have not been induced to enter into this Agreement by any warranty or representation. Nothing in this Agreement excludes, restricts or modifies any right or remedy, guarantee, warranty or other term or condition, which may at any time be implied or imposed by any Law which cannot be lawfully excluded.
4.5 To the full extent permitted by law, Finch and the Company each exclude all liability in respect of indirect or consequential damages such as loss of data, interruption of business or any consequential or incidental damages, other than where the liability is caused by the other party’s fraud or gross negligence.
4.6 The total liability of Finch for any loss or damage, whether arising from this Agreement or in relation to the Finch Platform or documentation, in tort or contract or in any other cause of action; or in any other way whatsoever, is limited to:
- If in the Initial Term, the amount paid by the Company to Finch under this Agreement at the date when such liability arises; or
- If in the Renewal Team, the amount paid by the Company to Finch over the previous one year period for the Services
- Liability as it pertains to the fraud, gross negligence or claims in connection with Intellectual Property infringement in Section 7 will be uncapped.
4.7 The Company indemnifies Finch, our related bodies corporate, our data partners and data providers and each of our and their employees, officers, contractors, representatives or agents from, and to hold each indemnified person harmless against, any loss, damage, liability, claim, cost or expense reasonably and properly suffered or incurred by any of the indemnified persons, including penalties or fines imposed by any regulatory authority and any damages and costs paid or payable as a result of the Company or any person for whom the Company is responsible for breaching any of the obligations under Section 1, 4, 5, 6, 7 and 2.4.
This indemnity is a continuing obligation, independent from any other obligation under this Agreement and continues after this Agreement ends.
5.1 The parties acknowledge that, in the course of their dealings, each party (“Receiving Party”) may receive or otherwise become familiar with information about the other party (“Disclosing Party”), including but not limited to information about the Disclosing Party’s technology, pricing, customer information, business activities and operations and its trade secrets which is proprietary or confidential (the “Confidential Information”).
5.2 Finch Confidential Information also includes but is not limited to the terms of this Agreement, the content accessed through Finch Platform, Authorised Users Log In details, Finch Reports, our services, deliverables and software products, any data and other information made available by Finch relating to our (or our data partner’s or data provider’s) trade secrets, ideas, concepts, know how, knowledge, technology, business, financial dealings, assets, liabilities, transactions, finances, strategy, methods, methodologies, processes, workings, products, services, customers or other affairs of any of our related body corporate information, or any other information which is expressly stated to be confidential information, but excludes information which is known to the public or otherwise becomes part of the public domain (other than due to breach of an obligation of confidence owed under this Agreement).
5.3 The Receiving Party hereby agrees to take all reasonable measures to maintain the confidentiality and secrecy of the Confidential Information of the Disclosing Party and to avoid its disclosure, including all precautions the Receiving party employs with respect to its confidential materials of a similar nature.
Receiving Party may not disclose the Disclosing Party’s confidential information to any third party, except to the extent required by applicable law or court order, provided that the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has, to the extent reasonably possible, allowed the Disclosing Party to participate in the proceeding.
5.4 Neither party will disclose the terms of this Agreement to any third party without the other party’s permission, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with applicable law.
6.1 Each party will comply with the Privacy Act 1988 (Cth) and any other applicable privacy or data protection laws which may be amended and in force from time to time (“Privacy Laws”) that relate to the collection, use, disclosure, storage or granting of access rights to Personal Information, and any reasonable directions of a party as to Privacy Laws and steps reasonably required to effect compliance.
6.2 The Company warrants that where relevant, they shall prepare and enter into an agreement with their Australian consumer customers (“Company Customers”) governing the relationship between the Company and Finch for the Services.
6.3 Anonymous, aggregated financial data (“Aggregated Data”) that is de-identified and does not contain Personal information is collected through the Company’s use of the Services, and may be combined by Finch with the aggregated data of other Companies (“Combined Aggregated Data”) for various purposes. These purposes include but are not limited to improving data intelligence accuracy, performance tracking, benchmarking, and to the extent permitted by law, for the use, sale, and licence of Finch for other products and services (“Permitted Use”).
7. Intellectual Property
7.1 The Company agrees that all intellectual property rights(“IPRs”), whether registered or unregistered, including without limitation rights in relation to inventions (including patents), know how, trademarks, copyright, business names, domain names, designs, circuit layouts, trade secrets and other confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields in the content and information accessed through Finch including Finch Reports are owned by Finch, our related bodies corporate, data partners or data providers (as applicable), and the Company may not reproduce or use any of our or their IPRs without our express prior written consent.
7.2 As part of the Services, Finch provides the Company with a non-exclusive, non-transferable, revocable limited licence to access confidential and commercially sensitive information of Finch within our Finch Reports. In using this information and the Finch Platform, the Company must:
- Keep any information which you have access to secure and confidential, and only use the information including Finch Reports for the Permitted Purpose;
- Not use or disclose any of the information you have access to, including Finch Reports for any purpose other than the Permitted Purpose, or make the information or Finch Reports (or any material derived from them) available to any other person, related body corporate or third party;
- Not sell, share, publish, reproduce or otherwise distribute the information in the Finch Reports, derived from the Finch Reports, or otherwise providing additional services for additional fees or charges relating to or connected to the Finch report, or for any purpose;
- Not reverse assemble, reverse compile, reverse engineer or otherwise attempt to recreate our merchant database or create similar or competing Services, or reports to the Finch Report; only access the Finch Platform in Australia
8.1 This Agreement is the entire agreement between the parties in connection with the subject matter of this agreement and supersedes all other agreements, understandings and representations between the parties.
8.2 All notices, consents or other communication must be in writing addressed to the parties and will be taken to have been given if:
mailed, via registered mail and on the expiration of three (3) business days after posting;
sent by email when the recipient sends an acknowledgment of receipt of the email
8.3 If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause, or part of a clause, is to be regarded as deleted from this Agreement, and this Agreement otherwise will remain in full force and effect.
8.4 During the term and for a period of 2 years after the expiry of the term, the Company agrees that neither it nor its affiliates may solicit or employ or contract an employee or contractor of Finch.
8.5 Finch is relieved from providing services in connection with the occurrence of a force majeure event.
8.6 This Agreement is governed by the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the Victoria courts.
9. Contact us
In case of any questions regarding this Agreement or the Services, please contact us at email@example.com.